This article is
reprinted from Volume 23 (2011) of the JOURNAL ON FIREARMS &
PUBLIC POLICY.

The American Revolutionary
Era Origin of the Second Amendment's Clauses

David E. Young

The 5/4 split decision in the Supreme Court’s
District of Columbia vs Heller case demonstrated a continuing
dichotomy in Second Amendment history between relevant period
sources, which were largely relied on in the Courts’ decision,
and the views of modern historians that backed up the dissent in that
case. Justice Breyer’s statement that most of the historians
supported the Heller dissent was correct, but that is exactly the
problem. The historians’ brief contained numerous errors of
fact and failed to present the essential bill of rights related
developmental history of the Second Amendment’s clauses. This
article contains extensive and essential relevant information that
directly conflicts with, or is entirely missing from, the historians’
brief to the Supreme Court.

David E. Young is a Second Amendment scholar, editor
of the ratification era document collection, THE
ORIGIN OF THE SECOND AMENDMENT, and
author of a recent definitive history, THE
FOUNDERS’ VIEW OF THE RIGHT TO BEAR ARMS.
Mr. Young’s historical research was extensively cited in the
2008 Heller case, as well as the 2001 Emerson decision from the Fifth
Circuit Court of Appeals.

A well regulated militia being necessary to the security
of a free state, the right of the people to keep and bear arms shall
not be infringed. 1

On September 26, 1789, the First Congress under the U.S.
Constitution provided a definitive link back to the immediate
predecessors of the Second Amendment’s ‘well regulated
militia’ and ‘right of the people to keep and bear arms’
clauses. The introduction to the proposed amendments stated a general
description of not only their nature and purpose but also their
source:

THE Conventions of a number of the states having at the
time of their adopting the CONSTITUTION expressed a desire, in order
to prevent misconstruction or abuse of its powers, that further
declaratory and restrictive clauses should be added: 2

Congress proposed the Second Amendment and other Bill of
Rights provisions to satisfy the desires of state ratifying
conventions. Examination of those desires makes it evident that
several conventions wanted a bill of rights added to the U.S.
Constitution that included a two-clause Second Amendment predecessor.
Section 17 in the Bill of Rights proposed by the 1788 Virginia
Ratifying Convention consisted of four clauses, the leading two being
the earliest two-clause predecessor adopted by a state convention.
These are the very clauses that James Madison and Congress directly
relied on for development of what became the Second Amendment’s
militia and arms related clauses. Virginia’s stated desire,
including the reason for proposal of a bill of rights, was:

That there be a declaration or bill of rights
asserting, and securing from encroachment, the essential and
unalienable rights of the people, in some such manner as the
following:-

. . . .

17th.
That the people have a right to keep and bear arms; that a
well-regulated militia, composed of the body of the people trained to
arms, is the proper, natural, and safe defence of a free state; that
standing armies, in time of peace, are dangerous to liberty, and
therefore ought to be avoided, as far as the circumstances and
protection of the community will admit; and that, in all cases, the
military should be under strict subordination to, and governed by,
the civil power.3

North Carolina’s 1788 convention refused to ratify
the Constitution and adopted the above Virginia language verbatim
along with all of Virginia’s other amendments on August 1st.4
The New York Convention’s July 26th
ratification included a declaration of rights with virtually the same
two-clause Second Amendment predecessor language.5
These three closely related two-clause bill of rights provisions from
1788 state ratifying conventions are the desires Congress perceived
for proposal of the Second Amendment’s clauses. Answers to the
questions of who was responsible for this particular bill of rights
language, how and where it originated in America, and why this
particular terminology was used are of great significance, especially
in any study of such a controversial provision. Such answers will
help inform what the Second Amendment meant to the founding
generation and dispel modern disagreement about it.

A. Virginia

1. A Well Regulated Militia, Composed of the Body of the
People

Virginia’s proposed 1788 “well regulated
militia” language was an exact quote of the first clause of
Section 13 from that state’s own 1776 Declaration of Rights:

SEC. 13. That a well-regulated militia, composed of
the body of the people, trained to arms, is the proper, natural, and
safe defence of a free state; that standing armies, in time of peace,
should be avoided, as dangerous to liberty; and that in all cases the
military should be under strict subordination to, and governed by,
the civil power.6

The context of Virginia’s 1776 well regulated
militia clause was that of a state constitutional level declaration
of rights provision intended to prevent legislative violation of the
stated principle.7
In an American state bill of rights, the appropriate historical
context was an intent to limit government power.8
This is the same context as the 1788 Virginia and North Carolina
proposals directly quoting the 1776 “well regulated militia”
language, the only difference being, the later proposals protect
against “misconstruction and abuse” of the new Federal
Government’s powers rather than those of a state government.

2. Virginia’s Self-Embodying Armed Populace

Virginia’s Section 13 language regarding a well
regulated militia of the people originated with George Mason, author
of Virginia’s 1776 Declaration of Rights. Prior to its
inclusion in America’s first state bill of rights, he had used
well regulated militia to describe a voluntary defensive association
of men in Fairfax County, Virginia, that formed months before
hostilities of the American Revolution began. A look at such armed
self-embodying activities and Mason’s writings regarding them
is therefore essential for understanding Second Amendment related
period usage and development.

George Mason, Patrick Henry, and other patriot leaders
of Virginia met with George Washington at Mount Vernon in late August
of 1774 long before any hostilities of the Revolution. They discussed
defensive measures against threatened British actions implemented by
military force. One result was encouragement of voluntary militia
associations in the home counties of these leading Virginia patriots.
Mason was involved from the very beginning in establishment of a
voluntary defensive association in Fairfax County. A meeting of
freeholders there on September 21, 1774, with Mason as chairman,
formed an association that was based on the concept of the free men
taking up their own arms and self-embodying for defense, as follows:

we the Subscribers, . . .being sensible of the
Expediency of putting the Militia of this Colony upon a more
respectable Footing, & hoping to excite others by our Example,
have voluntarily freely & cordially entered into the following
Association; which we, each of us for ourselves respectively,
solemnly promise, & pledge our Honours to each other, and to our
Country to perform.

That we will form ourselves into a Company, not
exceeding one hundred Men, by the Name of The Fairfax independent
Company of Voluntiers, making Choice of our own Officers; to whom,
for the Sake of Good-order & Regularity, we will pay due
submission. That we will meet at such Times & Places in this
County as our said Officers (to be chosen by a Majority of the
Members, so soon as fifty have subscribed) shall appoint &
direct, for the Purpose of learning & practising the military
Exercise & Discipline; dressed [in described uniform clothing –
ed.]; and furnished with a good Fire-lock & Bayonet, Sling
Cartouch-Box, and Tomahawk. And that we will, each of us, constantly
keep by us a Stock of six pounds of Gunpowder, twenty pounds of Lead,
and fifty Gun-flints, at the least. 9

By early January of 1775, still well before hostilities,
George Washington indicated that such defensive associations were
being formed in a number of Virginia counties:

In this County [Fairfax – ed.], Prince William,
Loudoun, Faquier, Berkely, & many others round about them, a
noble Ardour prevails. Men are forming themselves into independent
Companies, chusing their officers, arming, Equipping, & training
for the worst Event. The last Appeal! 10

Mason, while chairman of the Fairfax Committee of
Safety, used language regarding a well regulated militia and standing
armies very similar to that he later included in Virginia’s
1776 Declaration of Rights. From the Committee’s January 17,
1775 resolution:

that a well regulated Militia, composed of the gentlemen
freeholders, and other freemen, is the natural strength and only
stable security of a free Government, and that such Militia will
relieve our mother country from any expense in our protection and
defence, will obviate the pretence of a necessity for taxing us on
that account, and render it unnecessary to keep Standing Armies among
us – ever dangerous to liberty; and therefore it is recommended
to such of the inhabitants of this County as are from sixteen to
fifty years of age, to choose a Captain, two Lieutenants, an Ensign,
four Sergeants, four Corporals, and one Drummer, for each Company;
that they provide themselves with good Firelocks, and use their
utmost endeavours to make themselves masters of the Military
Exercise, published by order of his Majesty in 1765, and recommended
by the Provincial Congress of the Massachusetts
Bay, on the 29th
of October last. 11

This particular language was largely copied from a
December resolution of Maryland’s Provincial Committee
recommending such voluntary associations in that colony.12
Mason simply applied this well regulated militia language to the
existing defensive association in Fairfax County.

Mason again described the local defensive association as
a well regulated militia in February of 1775. His Fairfax County
Militia Plan clearly stated the purposes for such a self-embodying
defensive force of the people. It warned about destruction of “our
antient Laws & Liberty”, and indicated an intention to
transmit “those sacred Rights”, later described as “the
just Rights & Privileges of our fellow-Subjects, our Posterity, &
ourselves” to “our Children & Posterity”, as
well as provide the “only safe & stable security of a free
Government.”13
Once again, this language was extremely similar to that later used by
Mason for Virginia’s Declaration of Rights. That Maryland
delegates used well regulated militia terminology to describe
self-embodying defensive associations, and that it was also used by
Mason in Virginia for the same purpose indicates the concept of an
effective militia of the people for defense against government
tyranny was substantially more widespread than a single county or
colony at this period.

“Well regulated militia,” as used in early
revolutionary period writings of George Mason prior to hostilities
indicated that the militia, the armed free able-bodied males, were
effective for defense - not that they were government authorized,
organized, or trained. This is evident since the purpose of these
self-arming, self-embodying, and self-training defensive
associations, or independent companies was protection against
government raised military forces. Mason and the men who organized
for mutual defense began preparing to resist the King’s troops
over six months prior to any hostilities and more than a year prior
to the formation of Virginia’s 1776 Declaration of Rights.14

On March 23, 1775, Virginia’s revolutionary
Convention of Delegates recommended that similar independent
volunteer companies be formed in all counties of the colony. This
recommendation was also expressed in language very similar to that of
Mason and the Maryland Committee noted above.15
The sole reason effective independent militia associations were
possible at this period in Virginia was because the men of the colony
possessed their own arms and knew how to use them. Those officials
and forces constituting the danger that Virginians needed to defend
against, certainly were not about to make sure that Virginians
possessed arms, ammunition, or training to resist unconstitutional
and rights violating actions instituted by the government. On the
contrary, British officials were actively engaged in disarming
Americans to prevent any possible resistance. That was the reason
gunpowder was seized or removed from public access under orders from
the governors of both Massachusetts and Virginia prior to any
hostilities of the Revolution.16

What well regulated militia language meant to the
Virginians of this period was an effective self-embodying local
defensive association of the free men capable of resisting government
tyranny and protecting the rights of the people. Without an armed
population, no such defensive activity would have been possible. As
specifically included in the 1776 Virginia Declaration of Rights, a
“well regulated militia” was defined as “composed
of the body of the people, trained to arms”. This was a
reference to the preexisting armed population that organized and
trained themselves for local defense. These were the very defensive
actions that made it possible for Virginians to establish a new, free
government that was actually under their control.

The purpose of such a well regulated militia was also
clearly stated in Virginia’s Section 13 – defense of a
free state. That free state was founded on an armed civil population
capable of self-embodying to prevent tyranny and assure continuation
of the free state authorized in Virginia’s constitution.
Virginia’s Declaration of Rights introduction specifically
stated that the rights listed there were “the basis and
foundation of government.”17
Without an armed population, no effective self-embodying, defensive
associations could have assembled, and the creation of a free state
based on such an armed population could not have been formed. There
would have been no free state, only a military tyranny utilizing
force to control the civil population. The free state reference
appears in the Second Amendment related clause of Section 13. A
defensively effective armed populace is described there in the
common, Revolutionary Era terminology of an effective or well
regulated militia of the people.18

In American state bills of rights, the “well
regulated militia” language later employed in the Second
Amendment’s first clause originated in Virginia’s 1776
Declaration of Rights. Where then did “the right of the people
to keep and bear arms” style terminology first appear in a
state bill of rights?

B. Pennsylvania

1. The People Have a Right to Bear Arms

America’s second state declaration of rights was
adopted in Pennsylvania on August 16, 1776, as patriots there began
formally establishing a new state government to replace the faltering
colonial edifice. Virginia’s Section 13, above, was the direct
model for protection of the same three related concepts found in
Section 13 of Pennsylvania’s new Declaration of Rights:

XIII. That the people have a right to bear arms for
the defence of themselves and the state; and as standing armies in
the time of peace are dangerous to liberty, they ought not to be kept
up; and that the military should be kept under strict subordination
to, and governed by, the civil power. 19

2. Pennsylvania’s Self-Embodying Armed Populace

It was Pennsylvania that first used “the people
have a right to bear arms” style language in an American state
bill of rights. As with the “well regulated militia, composed
of the body of the people” language of Virginia’s Section
13, Pennsylvania’s “the people have a right to bear arms”
language, located in the first clause of its bill of rights Section
13, was also closely related to prior actions in the latter colony
early in the American Revolution. However, unlike Virginians,
Pennsylvanians did not begin defensive preparations in earnest until
after war actually broke out in Massachusetts.

Upon news of the battles at Lexington and Concord on
April 19, 1775 reaching Pennsylvania, men all across the colony
spontaneously associated for defense. The men took up their own arms,
formed companies, elected officers, and trained themselves for mutual
defense. These self-embodying defensive associations were exactly
like the defensive associations and independent companies that had
been formed well before hostilities in the counties of Virginia, and
they were formed for exactly the same reasons as those in the
neighboring colony. British government officials clearly intended to
compel obedience to their commands by employing military force. Since
British decrees and use of military force were unconstitutional and
violated their inherent rights, Americans decided they were not only
under no obligation to obey, but were fully justified in resisting
government military force with arms if necessary.20

Unlike each of the other American colonies regarding
defensive preparations, Pennsylvania’s colonial government did
not rely on the militia because its Quaker population was able to
prevent the colonial assembly from passing laws requiring military
duties. The other colonies passed laws requiring virtually all of the
free able-bodied males to obtain arms and train in peacetime to
function as soldiers for defense during emergencies.21
In stark contrast, all organized defensive activities in Quaker
founded Pennsylvania were carried out either by the wartime hiring of
troops, who volunteered to sign up for service as soldiers for a term
of duty, or by individuals at their own discretion taking up their
own arms, forming companies, electing officers, and training
themselves for mutual defense. There were a number of earlier
occasions during the colony’s history when men formed defensive
associations just as they did upon news of hostilities in
Massachusetts.22

Pennsylvania’s 1776 Declaration of Rights language
“the people have a right to bear arms” was the essential
foundation of self-embodying defensive associations. The right
included the concept of men taking up their own arms to self-organize
for mutual defense, something Pennsylvanians had previously done
whenever necessary. The history of Pennsylvania associators helps
inform why reference to “a well regulated militia” was
not copied from Virginia and included in the Quaker state’s
bill of rights as a description of its defensively effective armed
population. Instead, the fundamental right making such a defensively
effective population possible, the people’s right to bear arms,
was stated in the same clear language as the people’s rights to
freedom of assembly, the press, and of writing and publishing their
sentiments. Such defensive associating was fundamental to the concept
of an armed populace as a check on tyranny from government raised
forces. Like Virginia’s declaration of rights provision,
Pennsylvania’s was also directed at preventing abuse of power
by those at the helm of the state government authorized by the 1776
constitution.

II. DEFENSIVE ASSOCIATIONS, PRIVATE ARMS, AND CIVIL
CONTROL OF THE MILITARY

A. Similarities of Arms Related Bill of Rights Language

While the “well regulated militia, composed of the
body of the people” clause of Virginia’s bill of rights
and “the people have a right to bear arms” clause of
Pennsylvania’s may at first glance seem to be entirely
different concepts, a closer look at the extensive overlap of their
terms, other features, period developmental history, and complete
context indicate striking and overwhelmingly similarities. The
histories of the two colonies, as shown above, indicate identical
origins for the individual arms rights based defensive association
concept protected by each form of Second Amendment predecessor. Also,
both were bill of rights provisions intended as limits on state
legislative authority, related to defense, specified defense of the
state, and referred to the people and arms.23

Both forms also related to a population in which private
arms possession and use were common. This was largely the result of
widespread everyday activities related to destruction of pests and
dangerous predators on the farm, hunting, target shooting, and
self-defense/mutual defense, especially on the wild frontiers of
which Virginia and Pennsylvania were amply provided. As a result,
Americans also possessed the inherent capability of self-organizing
for effective armed defense against tyranny. This was clearly
demonstrated early in the American Revolution not only by Virginians
and Pennsylvanians but also by the people of the other colonies.

In the first two American declarations of rights, armed
populations capable of checking tyranny, establishing free
government, and assuring continuation of a free state were declared
to be the natural defense and the people’s right, respectively.
The essential element of these defensive concepts as a check upon
tyranny from government employed force was private arms possession
and use. Just as an effective militia of the people was “the
basis and foundation of government” in Virginia, according to
the preamble of its Declaration of Rights, the people’s right
to bear arms was the essential foundation for the declaration that
“all men . . . have certain natural, inherent and inalienable
rights, amongst which are, the enjoying and defending life and
liberty”, as declared in the first clause of Pennsylvania’s
Declaration of Rights.24

B. George Mason’s Triad

Another similarity in both Virginia’s and
Pennsylvania’s Section 13 bill of rights provisions was that
protection for an armed populace was the leading concept in a three
part provision, a fact of considerable significance regarding the
complete context of Second Amendment predecessors. As appears from
Pennsylvania’s extensive copying of Virginia’s Section 13
language, copying and borrowing provisions from earlier states by
those subsequently adopting a bill of rights during the Revolutionary
Era was a very common practice. Three other states, Delaware,
Maryland, and New Hampshire adopted extremely similar three-part
protective structures with a leading “well regulated militia”
provision derived from Mason’s 1776 Virginia Section 13.

The remaining three states with declarations of rights,
North Carolina, Vermont, and Massachusetts also adopted such
three-part Section 13 related structures, but these based their
leading clauses on “the people have a right to bear arms”
language from Pennsylvania’s 1776 original. Massachusetts was
the sole state to inserted “to keep” into its right to
arms language, partly as a result of General Gage’s disarming
of Boston’s civil population.25
Thus, all eight states that adopted a constitutional declaration of
rights during the Revolutionary Era included a complete triad of
protections originating from Virginia’s Section 13. Half of the
states used well regulated militia references, and the other half
used people have a right to bear arms language in their first
clauses. Such uniquely American three-part bill of rights protections
have been dubbed Mason Triads in honor of George Mason, author of the
1776 Virginia original.26

C. A Closer Look at Mason Triads

The eight revolutionary era Mason Triads were remarkably
alike indicating similarity of intent. They all began with a Second
Amendment related clause. The middle clause or section always
included a warning that standing armies were “dangerous to
liberty” and placed some restriction on raising them. The final
clause indicated that the military should be under strict
subordination to, and governed by, the civil power, with four states
specifying this was so “in all cases” and two of those
states also adding “at all times” in case it was not
already clear enough. All Mason Triads other than Vermont’s,
which copied Pennsylvania’s verbatim, varied the language of
each triad part somewhat. Examples of unique differences in the final
part were Maryland’s “control of” substituted for
“governed by” and Massachusetts’ “civil
authority” substituted for “civil power” found in
the other seven declarations.

The three distinct parts of Revolutionary Era Mason
Triads were always presented in the order described. In five of the
eight state declarations of rights, these parts existed as three
separate clauses in the same section. In the other three states, each
clause was located in a separate numbered section.

In addition to the state bill of rights context of
Second Amendment related triad clauses, as examined above for
Virginia and Pennsylvania, there is also their context in relation to
the other parts and overall purpose of Mason Triads. Each part was
intended as a limit on the government in some way, and the parts were
interrelated. The first part secured a defensively effective armed
population by declaring the people have a right to bear arms or that
a well regulated militia is the “proper” and “natural”
defense of a “free” state or government.27

In stark contrast to these assertions of the proper and
natural defense or right of the people, the second triad part
discouraged government reliance on standing armies. Half of the eight
state declarations indicated a peacetime standing army ought not to
be kept up, a prohibition, and the other four required “consent”
of the legislative body for an army, a limitation. By prohibiting or
discouraging a standing army, the preferred reliance upon the proper
and natural defense of a free state, its armed civilian population,
which could be called out for defense during emergencies as militia,
was increased. This would promote the liberty of the people in
comparison with a constant standing army that was “ever
dangerous to liberty”.

These first two contrasting triad parts, as well as the
last, were developed with a stark example of danger from a standing
army directly at hand, the British troops enforcing military control
over Boston’s civil population. British authorities appointed a
general, backed by a standing army, as governor in charge of civil
society in Massachusetts. To Americans, officials employing force to
rule over the people was understood as the very antithesis of free
government. Americans had always largely controlled their own destiny
by selecting all or most of their colonial officials under known and
established constitutions (charters) and laws assented to by their
own representatives. Americans’ new state constitutions clearly
established civil control of the military, not only in the letter of
the law but in fact, because they constitutionally protected the
power of an armed civil population to back up that control.28

The more Mason Triad clauses are examined in relation to
their historical origin and internal context, the more clear the
intent of their language becomes. One of the earliest Revolutionary
Era patriot texts to address the interrelated concepts that were
later combined into Mason Triads was Josiah Quincy’s
Observations on the Boston Port Bill With
Thoughts on Civil Society and Standing Armies.
It was published in Boston in mid-May 1774 around the time General
Gage, the new military governor of Massachusetts, arrived with more
troops to overawe and control the Americans. This was two years prior
to the adoption of Mason’s original triad in the Virginia
Declaration of Rights.

Quincy’s Observations
went into extensive detail about the advantages of “a well
regulated militia, composed of the freeholders, citizens, and
husbandmen, who take up arms to preserve their property as
individuals, and their rights as freemen.” He placed this
concept and the other two triad related ideas in the context of the
then current use of force by British authorities and their onerous
governmental innovations. Quincy’s view was that authorities
can never make the military forces they employ superior to civil
society because, as he so clearly stated, “[t]he people who
compose the society . . . are the only competent judges of their own
welfare, and therefore, are the only suitable authority to determine
touching the great end of their subjection and their sacrifices.”
Quincy’s text was an early example of what became a widespread
American patriot viewpoint and foundation of their equally widespread
local defensive activities as the Revolution inexorably developed.29

III. RATIFICATION ERA SECOND AMENDMENT PREDECESSORS

A. The Ratification Era Bill of Rights Dispute

On September 17, 1787, six years after the Battle of
Yorktown, which brought an end to major battles of the Revolution,
the U.S. Constitution was published by the Federal Convention in
Philadelphia. An intense public dispute over its ratification quickly
developed. The most effective argument against ratification from
Antifederalists, the Constitution’s opponents, was the lack of
a bill of rights like those of the states in the new form of
government. Since each of the eight state bills of rights contained a
Second Amendment related provision, general demands for a bill of
rights constituted demands for adding Second Amendment protection
along with protection for all of the other essential rights later
included in the first eight amendments to the Constitution.

The lack of a bill of rights complaint originated within
the Federal Convention itself. Late in the proceedings, it became
evident to George Mason that the Constitution as proposed in the
second draft from the Committee of Style would have little or no
protection for the rights of the people as secured in the existing
state declarations of rights. He initiated a request on September
12th for a
committee to draw up a bill of rights. Even though Mason emphasized
that “with the aid of the state declarations, a bill might be
prepared in a few hours”, a committee for the purpose was
rejected by the delegates, most of whom were anxious to return home
after months in Philadelphia.30
This action incensed the elder Virginia delegate and author of
America’s first state declaration of rights, leading Mason not
only to refuse signing the Constitution, but continue his later bill
of rights advocating antifederalism.31

Mason wrote a number of objections to the Constitution
on the back his Committee of Style Report during the final days of
the Convention.32
The complaints about lack of a bill of rights were prominently placed
at the top of his list. That Mason opposed ratification and supported
a Federal bill of rights based on the state declarations of rights
became common knowledge because of both his notorious refusal to sign
the new form of government and his industrious sharing of his list of
objections with everyone he wrote or personally contacted. He sent
copies with letters to a number of correspondents, including Thomas
Jefferson and George Washington. The copy sent to Washington and
published early in the ratification struggle began:

Objections to the Constitution of Government formed by
the Convention.

There is no Declaration of Rights, and the Laws of
the general Government being paramount to the Laws &
Constitutions of the several States, the Declarations of Rights in
the separate States are no Security. Nor are the People secured even
in the Enjoyment of the Benefits of the common-Law, which stands here
upon no other Foundation than it’s having been adopted by the
respective Acts forming the Constitutions of the several States - 33

Mason’s objections make it clear that it was the
security of the people and their rights against government actions
that his bill of rights concerns were directed. Adding to Mason’s
Antifederalist notoriety, his objections were widely republished,
resulting in his being a well known promoter of adding state bills of
rights protections as foundation for a Federal bill of rights.

A significant example of George Mason’s bill of
rights promoting personal contacts occurred prior to leaving
Philadelphia, where he was chastised by Federalists in newspapers for
this activity. After the close of the Federal Convention, Mason met
with John Smilie, William Findlay, and Robert Whitehill, the men who
later became Antifederalist leaders of the Pennsylvania Ratifying
Convention’s minority. Mason’s understanding of the need
for a Federal bill of rights was a major point of discussion in such
meetings since it was foremost among his objections to the
Constitution.34

The Ratifying Period bill of rights debate that
subsequently developed was not about which rights were important to
include in a Federal bill of rights or what the meaning of the
existing protections was. Those points were well understood because
the desired rights protections were all “essential and
unalienable rights of the people”35
that were found in the existing state declarations of rights. The
main issue during ratification was whether these core rights,
protected against state governments, needed to be protected against
the proposed Federal Government as well. A related issue was whether
the Constitution should be amended with a bill of rights prior to or
after its ratification. The final fate of bill of rights proposals,
including protection for the right to keep arms, was eventually voted
on by seven state ratifying conventions.

B. Ratification Era Arms Related Mantras

Another topic of intense period dispute was the military
powers given to the new government under the Constitution. Military
force could be used to destroy liberty and impose tyranny, something
Americans had experienced firsthand from the British in the very
recent past. Americans were also well aware that one of the first
things necessary for such tyranny to succeed would be the disarming
of the population, something else experienced when the British gained
military control.36
Under the proposed Constitution, Congress could raise an army and
provide for organizing, arming, and disciplining the militia.
Antifederalists saw danger to liberty in these provisions because
Congress could establish a peacetime standing army or a select
militia, from either of which tyranny would ensue. In their view, a
select militia, one not including all the able-bodied free men, was
the equivalent of a part-time standing army.

Antifederalists developed a mantra usually related to
proposed military powers that stated, in its simplest form, the
people or militia would be disarmed and tyranny result. Some argued
this would occur gradually and almost imperceptibly over time, while
others asserted it was the plan of the Framers all along and would
start as soon as an army was raised.

Quite to the contrary, Federalists were not in favor of
tyranny and thought such concerns entirely groundless. Federalists
developed their own mantra that tyranny under the Constitution was
not possible because the people were armed. Both the Federalist and
Antifederalist mantras were stated in a wide variety of ways.37
Most of these arms mantras related to Mason Triad concepts in a very
general way because they dealt with an armed population as the
counter to tyranny imposed by government raised military force. These
mantras indicate that both Federalists and Antifederalists understood
the people of America should possess arms in order to preserve
liberty and protect themselves against tyranny.38

A definitive Ratification Era text that greatly
clarifies common period usage of militia related terminology is
Alexander Hamilton’s The Federalist #29,
which discussed the militia powers in the proposed Constitution.
Hamilton equated the militia and the people in three separate
instances within this text. He described the militia as “the
great body . . . of the citizens”, “the people at large”,
and as “the whole nation”. When Hamilton described a
militia not consisting of the body of the people, but rather of
individuals selected by the government, he used the adjective
“select” to indicate it would consist of a portion of the
entire militia. Thus, his reference to “formation of a select
corps” indicated that corps of militia would consist of only
part of the militia.39
Hamilton’s text also indicated that “well regulated”
in conjunction with “militia” meant effective or
proficient, and that this was an inherent condition of the militia,
not something that could be bestowed upon them by someone else. “Well
regulated” simply meant “effective” when combined
with “militia”.40
Hamilton’s usage of “militia”, “select
militia”, and “well regulated militia” was common
and consistent with that generally used throughout the American
Colonial, Revolutionary, and Ratification Periods.41

C. Proposed Bill of Rights Assurances for an Armed
Population

The Federalist and Antifederalist Mantras were an
ongoing background for numerous bill of rights demands during the
fierce public dispute over ratification. It was these demands that
were the impetus for development of the U.S. Bill of Rights.42
Ratifying convention Second Amendment predecessors were taken
virtually verbatim from existing state declarations of rights
protections. In fact, complete Mason Triads were the main vehicle
used for proposals intended to protect an armed populace in five
state conventions,43
and standing army provisions were associated with those in the other
two.44
A bill of rights written by George Mason in 1788 and based on his
1776 Virginia Declaration of Rights became the model for the U.S.
Bill of Rights. It is essential for a clear understanding of the
Second Amendment that its predecessor development during ratification
from the existing government limiting state bills of rights
provisions and George Mason’s central involvement be fully
understood.

Pennsylvania’s ratifying convention was the first
to meet, assembling on November 20th,
1787, just over two months after the Constitution was published.
There was extensive debate in the convention concerning the new
government’s military powers, the threat of tyranny, and the
need for a bill of rights. The latter was vigorously argued by
minority leaders, who not only prepared a list of bill of rights
proposals based directly on provisions of the existing Pennsylvania
Declaration of Rights, but also forced a vote by linking them with a
motion to adjourn. The 15 minority proposals, introduced in the
convention by Robert Whitehill on December 12, 1787, included
Pennsylvania’s complete 1776 Mason Triad.45
This earlier right to bear arms provision was expanded with language
relating the right to defense of the United States and to killing
game, as well as a clause explicitly preventing laws “for
disarming the people or any of them”.46
All of these minority proposed bill of rights protections and some
other amendments, the latter including an unrelated militia powers
amendment, were rejected by the overwhelming Federalist majority,
which voted against any adjournment.47
On December 18, the unsuccessful members of the Pennsylvania Minority
published their arguments and bill of rights proposals in a long
Dissent that became
one of the Ratification Era’s most extensively reprinted
political tracts. The Dissent
of the Pennsylvania Minority spurred much more widespread and
thorough discussion of the need for a Federal bill of rights.48

The second attempt within a ratifying convention to add
core bill of rights protections occurred in Massachusetts, where
Samuel Adams offered a proposal relating to 1st,
2nd, and 4th
Amendment rights at the end of the convention on February 6, 1788.
This proposal included the first two parts of a Mason Triad denying
federal authority “to prevent the people of the United States,
who are peaceable citizens, from keeping their own arms” and
preventing a standing army being raised unless necessary. Adams’
proposal was defeated.49

Each of the five subsequent attempts to approve bill of
rights provisions that included Second Amendment related protection
in state ratifying conventions was successful.50
On June 21, 1788, the New Hampshire Ratifying Convention became the
first to adopt core bill of rights proposals, which included Second
Amendment related protection. These proposals were appended to the
list of nine Federalist prepared amendments that Massachusetts
previously adopted. Added by New Hampshire were the first two parts
of a Mason Triad, one declaring that “Congress shall never
disarm any citizen, unless such as are or have been in actual
rebellion”, and the other preventing raising of a standing army
in time of peace unless with the consent of ¾ majority vote in
each house of Congress.51

D. George Mason’s Virginia Model for the U.S. Bill
of Rights

George Mason drew up the “bill or declaration of
rights” adopted almost word for word by the 1788 Virginia
Ratifying Convention. Mason was chairman of an ad-hoc committee of
Antifederalists who agreed upon amendments supported by those opposed
to ratification. Since all of Mason’s bill of rights proposals
were developed from existing state declaration of rights protections,
they were quickly assembled and easily received widespread support
from the Antifederalists in the convention. He completed a twenty
section bill of rights within a few days of the delegates’
convening and also began working on a list of “other”
non-bill of rights amendments that eventually included twenty
provisions by the end of the month long convention.

Mason’s 1788 bill of rights proposal was based
directly on the Virginia Declaration of Rights, an earlier Mason
production from 1776. Added to its protections were a few provisions
taken from other state declarations. Not found in Virginia’s
1776 original, Mason added freedom of speech from the Pennsylvania
Declaration of Rights to his 1788 version. He also strengthened
provisions by duplicating them using alternate language protecting
the same right taken from other states’ bills of rights. One
example of such duplication was expanding the 1776 Virginia “freedom
of the press” language by adding Pennsylvania’s that was
more descriptive of the people’s right of “writing, and
publishing their sentiments”.52

E. Origin of the Two-Clause Second Amendment Predecessor

The other major example of duplication was the Second
Amendment related protection. This resulted from Mason’s
addition of Pennsylvania style language copied from the Massachusetts
Declaration of Rights, “[t]he people have a right to keep &
to bear arms”, preceding a quote of Mason’s original 1776
Section 13 well regulated militia language. Comparing Mason’s
Section 17 Mason Triad proposal, below, to the Virginia Ratifying
Convention’s adopted Section 17,53
the sole differences in Second Amendment related language are
substitution of “and” for “&” and
dropping “to” prior to “bear arms” in the
convention’s version. Mason’s 1788 triad stated:

17. That the People have a Right to keep & to bear
Arms; that a well regulated Militia, composed of the Body of the
People, trained to Arms, is the proper natural and safe Defence of a
free State; that standing Armys in time of Peace are dangerous to
Liberty, and therefore ought to be avoided, as far as the
Circumstance and Protection of the Community will admit; and that in
all Cases, the Military shou’d be under strict Subordination to
and govern’d by the Civil Power. 54

Delegates of North Carolina’s ratifying convention
refused assent to the Constitution on August 1, 1788. They resolved
that a declaration of rights and other amendments be laid before
Congress and a new convention of the states prior to North Carolina
ratifying the Constitution. The convention then adopted the Mason
based Virginia Convention Bill of Rights and “other”
amendments verbatim as well as added six new amendments of their
own.55

Prior to North Carolina’s action, New York’s
Antifederalist leaders relied directly on George Mason’s Bill
of Rights model for development of the declaration of rights included
in that state’s ratification document. John Lamb of the New
York Federal Republican Committee sought cooperation on amendments
from all three of the Virginia convention’s Antifederalist
leaders, George Mason, Patrick Henry, and George Grayson, via special
courier delivered letters. As noted previously, Mason’s bill of
rights was prepared and completed early in the convention. Thus, on
June 9th, seven
days into the month long convention, when all three Virginians
responded to Lamb using the same courier, Mason was able to include a
complete copy of his bill of rights model.

Immediately on receipt of Mason’s proposal at New
York City, Lamb transmitted it to Antifederalist leaders of the New
York Ratifying Convention. Not having a constitutional level bill of
rights in New York and wishing to cooperate on similar amendments,
Antifederalists in that state’s convention extensively relied
upon Mason’s model for their Federal bill of rights proposals.
In fact, they were utilizing Mason’s bill of rights proposals
prior to their later introduction in the Virginia convention where
they originated. This cooperation between Antifederalist leaders in
Virginia and New York was a major reason for extensive similarity
between the 1788 Virginia proposed Bill of Rights and the Declaration
of Rights found in New York’s Ratification.56

As a result of this Antifederalist cooperation, the last
three ratifying conventions of 1788, Virginia, North Carolina, and
New York, each adopted complete bills or declarations of rights
including a duplicated or two-clause Second Amendment proposal as the
lead part of a complete Mason Triad.57
All three of these two-clause proposals started with the declaration
“That the people have a right to keep and bear arms”. In
the Virginia and North Carolina versions, that was followed by a
verbatim quote of Virginia’s 1776 well regulated militia
clause. New York’s convention used virtually the same well
regulated militia language, changing only the definition of a well
regulated militia, from Virginia’s: “composed
of the body of the people trained to arms”,
to New York’s: “including
the body of the people capable of bearing
arms”. [Changed language
underlined. Italics original.]

IV. SECOND AMENDMENT DEVELOPMENT IN CONGRESS

In order to procure enough votes for ratification of the
Constitution by Virginia, James Madison, Federalist leader in its
1788 ratifying convention, had promised to support most of the
Antifederalists’ bill of rights provisions and a few of their
“other” proposed amendments.58
He later complied with this promise by presenting a reorganized
version of Virginia’s proposed bill of rights and four of its
less drastic “other” amendments to the House of
Representatives on June 8, 1789.59
While perfectly willing to protect the people’s right to
possess and use their own arms, as well as the other individual
rights protections sought by the Antifederalists, he was not willing
to support their attempts to alter any Article 1, Section 8 powers of
Congress. Madison’s version of selections from the state
ratifying conventions’ amendments proposals, as well as the
full state proposals themselves, were all assigned to a House
committee for consideration on July 21, 1789.60
His version consisted primarily of protections from Virginia’s
desired “declaration or bill of rights” along with only
four proposals taken from Virginia’s list of twenty “other”
amendments.61

Madison had no reason to include the second and third
Mason Triad parts along with his two-clause Second Amendment proposal
to Congress. Federalists did not want to discourage the Federal
Government, which would be responsible for defense of the entire
country, from having an army whenever Congress determined one to be
necessary. The Constitution already required approval of the
legislative branches for raising an army and funding reauthorization
every two years, in effect implementing the equivalent of the second
Mason Triad section limitations found in four of the existing state
declarations of rights.62

Similarly, Federalists understood the Constitution,
authorized by the people, to already ensure civil control of the
military by placing government raised forces directly under command
of the President, who was a civil officer under a civil constitution
authorized by the civil population. It did not establish a military
government nor provide any authorization for government raised forces
to take control, whether under direction of government officials or
acting on their own. The Ratification Era debates make perfectly
clear that Federalists based their polity on the existence of an
armed civil population capable of preventing military tyranny. These
arguments consistently indicated that the people would always possess
force capable of assuring their ultimate control over any possible
government raised forces.63

Most of Madison’s private rights protections,
including the Second Amendment’s antecedent language, were
grouped together for insertion into the Constitution at the only
location where individual rights were protected against the new
Federal Government.64
His Second Amendment proposal closely followed Virginia’s bill
of rights desire. He altered its declaration that “the people
have a right to keep and bear arms” by simply adding
restrictive language to read “the right of the people to keep
and bear arms shall not be infringed.” This language was not
altered by Congress other than to later switch the order of the two
clauses. Madison phrased his second, well regulated militia clause to
be dependent on the keep and bear arms clause, as follows:

The right of the people to keep and bear arms shall not
be infringed; a well armed and well regulated militia being the best
security of a free country; . . .65

Since the militia, to be effective, would be
fundamentally dependent on arms possession and use, Madison’s
change of the well regulated militia clause from Virginia’s
simple declaration to a clause indicating dependence on the right of
the people to keep and bear arms made perfect sense. Madison had been
a member of the 1776 Virginia committee that drew up and approved the
1776 Virginia Section 13 “well regulated militia”
language, which was the very language his Second Amendment proposal
was developed from.66
He well understood that private arms possession was fundamental to
this self-embodying defensive concept, especially in a bill of rights
context limiting government power.

The House select committee on amendments altered
Madison’s well regulated militia language to more closely match
the Virginia original by re-inserting “composed of the body of
the people” and replacing “free country” with “free
state”. A committee change was also made to the order of the
clauses as proposed by both Virginia and Madison, placing the
dependent militia clause before the restrictive keep and bear arms
clause.67
The Senate later added “necessary to the” in place of
“the best” security language and dropped the definition
of a well regulated militia being “composed of the body of the
people”.68
Since the right to keep and bear arms was protected for the people,
and the militia were understood to be the people, the reference to
the people in the well regulated militia clause was an unnecessary
duplication.

All twelve of the amendments proposed by Congress on
September 26, 1789, were included with those Madison introduced on
June 8th. The last
ten of the congressional proposals were ratified by ¾ of the
state legislatures with action by Virginia’s legislature on
December 15, 1791. These ten amendments, the first eight protecting
individual rights taken from state bills of rights, and the last two
taken from Virginia’s list of “other” amendments,
became what Americans have always referred to as the U.S. Bill of
Rights, even though that title was never included in any of the
amendment proposals of Congress.69

V. CIVIL CONTROL OF THE MILITARY IS NOT OBSOLETE

It has been suggested that the Second Amendment’s
language is so confusing and ancient as to be completely obsolete and
presumably fit to be ignored. Historical evidence directly
contradicts this view. To the contrary, American history indicates
that Americans of all post-colonial periods have viewed Second
Amendment related protections against misconstruction and abuse of
power by the state and Federal governments as essential underpinnings
of the free governments they authorized and intended to maintain.

If protection for an armed populace and other Mason
Triad related clauses had simply disappeared after the American
Revolution, they would have had little significance beyond their
study relative to the Revolutionary Period itself. However, that is
far from the case. Mason Triads were the vehicle for proposal of the
two-clause Second Amendment predecessor by state ratifying
conventions. Also, the people of the states have rather consistently
included Mason Triad provisions in the bills of rights of their
constitutions right up to the latest revisions.70
Declarations that the military should be subordinate to the civil
power appear in the constitutions of forty-nine states, many based
directly on terminology that originated with George Mason in 1776.
Seven states have included complete Mason Triads in updated
constitutions since 1971.71

Because the Second Amendment’s clauses were
developed directly from the early states’ bills of rights,
there is also a direct link between them and related modern state
bill of rights provisions, which were either based on those of the
early states or the Second Amendment itself. At least forty-five
states have bills of rights containing Second Amendment related
protections, many quoting its very terms.72
The people of at least sixteen states have either added or made
updates to their existing Second Amendment related provisions since
1960. The vast majority of these changes employed language that could
not be misinterpreted regarding the right of individuals to keep and
bear their private arms. Most of these updates appear to be in
response to modern dispute questioning the individual rights
protecting nature of the Second Amendment’s language.73

These historical facts indicate that the Second
Amendment’s protection has never been viewed as obsolete by the
people of America. Quite to the contrary, they indicate that the
overwhelming majority of Americans are as much concerned today about
preserving their control over governments they authorize and the
forces raised by them as were their ancestors when they bound the
state and Federal governments with constitutional level bills of
rights during the Founding Era. Considering the enhanced number,
nature, and power of modern military forces available to the
government, as well as the extent to which governments tend to employ
an ever bigger and widening array of armed enforcement agencies, many
often militarized in more recent times, the possibility of tyranny
from government force employed against the people most assuredly has
not decreased since our country’s inception.

VI. CONCLUSION

The concept that governments should possess a monopoly
of force was not the viewpoint of Americans during the Founding Era.
Our states and nation came into being because Americans decided to
end British attempts to place the military in control of the civil
population of Massachusetts. Americans replaced British military
tyranny with civil governments dependent upon and supported by the
inherent power of the people themselves. They assured that nothing
like a government of force, the opposite of a free government, could
ever again be set up in the United States. This was accomplished by
simply protecting the right of the people to keep and bear arms, thus
assuring their ability to self-embody for effective organized
defense.

All eight Revolutionary Era Second Amendment
predecessors, as well as the three Ratification Era two-clause
proposals copied from them, were leading parts of complete Mason
Triads. This context indicates the intention of both Second Amendment
clauses was to assure the armed civil population’s control over
government raised military force for the purpose of preventing
oppression and tyranny. The First Congress, by protecting the right
of the people to keep and bear arms, assured the people of being in a
position to self-embody as an effective militia. Indeed, this was the
very foundation of the Federalists’ polity as often expressed
in their arms related mantra during the ratification struggle. A free
state was ensured by such an armed populace because the people were
inherently able to prevent the forceful implementation of acts that
violated their rights and the Constitution. In the unlikely event
such situations of force should ever arise, the people by merely
defending themselves would be enforcing the supreme law of the land,
and those attempting to use force against the people would be in
direct violation of that supreme law, which the people had
authorized.

Today, to the extent that the Second Amendment’s
language is considered confusing or unclear, one thing is certain.
Those applying such descriptions are unfamiliar with or ignoring the
Second Amendment’s extensively documented American bill of
rights history and period usage of its terms. Our history
conclusively demonstrates both Second Amendment clauses are part and
parcel of the individual rights protections that constitute the first
eight amendments of the U.S. Bill of Rights. All of these provisions
resulted from state ratifying convention desires that protections of
the existing state bill of rights be added to the U.S. Constitution
in a Federal Bill of Rights.74
The relevant historical documents indicate that the Second
Amendment’s clauses, just like their state bill of rights
predecessors, were intended to protect individual rights against
misconstruction and abuse of government powers.

APPENDIX I

Revolutionary Era State Declaration of Rights Mason
Triads

1. Virginia - June 12, 1776

“SEC.13. That a well-regulated militia, composed
of the body of the people, trained to arms, is the proper, natural,
and safe defence of a free state; that standing armies, in time of
peace, should be avoided, as dangerous to liberty; and that in all
cases the military should be under strict subordination to, and
governed by, the civil power.” [David E. Young, The
Origin of the Second Amendment, (hereafter
ORIGIN), 2001, Golden Oak Books, Ontonagon, Michigan, pp. 748-749.]

2. Pennsylvania - August 16, 1776

“XIII. That the people have a right to bear arms
for the defence of themselves and the state; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be
kept up; and that the military should be kept under strict
subordination to, and governed by, the civil power.” [ORIGIN,
p. 754.]

3. Delaware - September 11, 1776

“SECT. 18. That a well regulated militia is the
proper, natural and safe defence of a free government.

SECT. 19. That standing armies are dangerous to liberty,
and ought not to be raised or kept up without the consent of the
Legislature.

SECT. 20. That in all cases and at all times the
military ought to be under strict subordination to and governed by
the civil power.” [ORIGIN, p. 752.]

4. Maryland - November 11, 1776

“XXV. That a well-regulated militia is the proper
and natural defence of a free government.

XXVI. That standing armies are dangerous to liberty, and
ought not to be raised or kept up, without consent of the
Legislature.

XXVII. That in all cases, and at all times, the military
ought to be under strict subordination to and control of the civil
power.” [ORIGIN, p. 758.]

5. North Carolina - December 18, 1776

“XVII. That the people have a right to bear arms,
for the defence of the State; and, as standing armies, in time of
peace, are dangerous to liberty, they ought not to be kept up; and
that the military should be kept under strict subordination to, and
governed by, the civil power.” [ORIGIN, p. 762.]

6. Vermont - July 8, 1777

“XV. That the people have a right to bear arms for
the defence of themselves and the State; and, as standing armies, in
time of peace, are dangerous to liberty, they ought not to be kept
up; and that the military should be kept under strict subordination
to, and governed by, the civil power.” [ORIGIN, p. 767.]

7. Massachusetts - October 25, 1780

“XVII. The people have a right to keep and to bear
arms for the common defence. And as, in time of peace, armies are
dangerous to liberty, they ought not to be maintained without the
consent of the legislature; and the military power shall always be
held in an exact subordination to the civil authority, and be
governed by it.” [ORIGIN, p. 773.]

8. New Hampshire - June 2, 1784

“XXIV. A well regulated militia is the proper,
natural, and sure defence of a state.

XXV. Standing armies are dangerous to liberty, and ought
not to be raised or kept up without the consent of the legislature.

XXVI. In all cases, and at all times, the military ought
to be under strict subordination to, and governed by the civil
power.” [ORIGIN, p. 778.]

“7. That the people have a right to bear arms
for the defence of themselves and their own state, or the United
States, or for the purpose of killing game; and no law shall be
passed for disarming the people or any of them, unless for crimes
committed, or real danger of public injury from individuals; and as
standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up; and that the military shall be kept under
strict subordination to and be governed by the civil power.”
[ORIGIN, p.151. Note: One of 15 minority proposals rejected.]

2. Massachusetts Ratifying Convention

Samuel Adams Proposal - Rejected Feb. 6, 1788

“And that the said Constitution be never
construed to authorize Congress . . . to prevent the people of the
United States, who are peaceable citizens, from keeping their own
arms; or to raise standing armies, unless when necessary for the
defence of the United States, or of some one or more of them. . .”
[ORIGIN, p.260. Note: Adams’ other protections related to the
1st and 4th
Amendments were also rejected.]

3. New Hampshire Convention

Adopted June 21, 1788

“X. That no standing army shall be kept up in
time of peace, unless with the consent of three fourths of the
members of each branch of Congress; . . .

. . . .

XII. Congress shall never disarm any citizen, unless
such as are or have been in actual rebellion.” [ORIGIN, p.446.]

4. Virginia Ratifying Convention

Bill of Rights Proposal Adopted June 27, 1788

“17th. That the people have a right to keep and
bear arms; that a well-regulated militia, composed of the body of the
people trained to arms, is the proper, natural, and safe defence of a
free state; that standing armies, in time of peace, are dangerous to
liberty, and therefore ought to be avoided, as far as the
circumstances and protection of the community will admit; and that,
in all cases, the military should be under strict subordination to,
and governed by, the civil power.”

[ORIGIN, p.459.]

5. New York Convention Ratification Document

Declaration of Rights Adopted July 26, 1788

“That the people have a right to keep and bear
arms; that a well-regulated militia, including the body of the people
capable of bearing arms,
is the proper, natural, and safe defence of a free state.

That the militia should not be subject to martial
law, except in time of war, rebellion, or insurrection.

That standing armies, in time of peace, are dangerous
to liberty, and ought not to be kept up, except in cases of
necessity; and that at all times the military should be under strict
subordination to the civil power.” [ORIGIN, p.481.]

6. North Carolina Ratifying Convention

Ratification Refused & Bill of Rights Proposal
Adopted Aug. 1, 1788

“17. That the people have a right to keep and
bear arms; that a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defence of
a free state; that standing armies, in time of peace, are dangerous
to liberty, and therefore ought to be avoided, as far as the
circumstances and protection of the community will admit; and that,
in all cases, the military should be under strict subordination to,
and governed by, the civil power.”

[ORIGIN, p.505.]

7. Rhode Island Convention Ratification Document

Declaration of Rights Adopted May 29, 1790

“XVII. That the people have a right to keep and
bear arms; that a well-regulated militia, including the body of the
people capable of bearing arms, is the proper, natural, and safe
defence of a free state; that the militia shall not be subject to
martial law, except in time of war, rebellion, or insurrection; that
standing armies, in time of peace, are dangerous to liberty, and
ought not to be kept up, except in cases of necessity; and that, at
all times, the military should be under strict subordination to the
civil power; . . .” [ORIGIN, p.735.]

ENDNOTES

1
The ratified Second Amendment as printed in Secretary of State
Thomas Jefferson's March 1, 1792, authenticated imprint of the
amendments proposed by Congress on September 26, 1789. Copies of the
imprint accompanied notification that the last 10 of the 12 proposed
amendments had been ratified by 3/4 of the state legislatures. David
E. Young, The
Founders’ View of the Right to Bear Arms
(cited hereafter as FOUNDERS’ VIEW ), 2007, Golden Oak Books,
Ontonagon, Michigan, p. 222.

3
David E. Young, The
Origin of the Second Amendment: A Documentary History of the Bill of
Rights in Commentaries on Liberty, Free Government, and an Armed
Populace, 1787-1792
(cited hereafter as ORIGIN),
2001, Golden Oak Books, Ontonagon, Michigan, pp. 457, 459. All four
clauses of Section 17 are presented for internal context, which is
examined below.

6
ORIGIN, pp. 748-749.
Adopted June 12, 1776. Not only are the well regulated militia
clauses identical in Virginia's 1776 Section 13 and 1788 Section 17,
the final "civil power" clauses are also identical, and
the middle "standing armies" clauses are nearly the same
with some added language in the newer version. The internal context
is examined below.

7
See FOUNDERS’ VIEW, p. 75, for Edmund Randolph's view that the
legislature's acts should not violate any of the principles or
canons contained in Virginia's Declaration of Rights. See ORIGIN,
p. 436, for George Mason's 1788 statement relating to Virginia’s
Declaration of Rights that "there were certain great and
important rights, which the people, by their bill of rights,
declared to be paramount to the power of the legislature." See
ORIGIN,
p. 657 for James Madison's statement in Congress that "[t]he
people of many States have thought it necessary to raise barriers
against power in all forms and departments of Government”.
Mason, Randolph, and Madison were well aware of the purpose of state
bills of rights because all were members of the committee that drew
up and approved Virginia's 1776 Declaration of Rights. See FOUNDERS’
VIEW, p. 63.

8
The professional historians’ 2008 amicus brief to the Supreme
Court in the District
of Columbia vs Heller
case essentially argued that state laws would be paramount to
provisions in the first eight state bill of rights. That view is in
direct conflict with statements of Randolph, Mason, and Madison, who
were involved in writing America's first state declaration of
rights. See note 7, above. The historians' brief includes numerous
errors of fact as well as omissions of essential information that
have been identified and documented by the author in “Root
Causes of Never-Ending Second Amendment Dispute” posted at On
Second Opinion Blog.
This 24 part series commenced January 25, 2009 at:
http://onsecondopinion.blogspot.com/2009/01/root-cause-of-never-ending-second.html

13
Extended excerpt from Mason’s Fairfax County Militia Plan:
"Threatened with the Destruction of our antient Laws &
Liberty, and the Loss of all that is dear to British Subjects &
Freemen, justly alarmed with the Prospect of impending Ruin, -
firmly determined, at the hazard of our Lives, to transmit to our
Children & Posterity those sacred Rights to which ourselves were
born; and thoroughly convinced that a well regulated Militia,
composed of the Gentlemen, Freeholders, and other Freemen, is the
natural Strength and only safe & stable security of a free
Government, & that such Militia will relieve our Mother Country
from any Expense in our Protection and Defence, will obviate the
Pretence of a necessity for taxing us on that account, and render it
unnecessary to keep any standing Army (ever dangerous to liberty) in
this Colony, WE the Subscribers, Inhabitants of Fairfax County, have
freely & voluntarily agreed, & hereby do agree &
solemnly promise, to enroll & embody ourselves into a Militia
for this County, intended to consist of all the able-bodied Freemen
from eighteen to fifty Years of Age, under Officers of their own
Choice; [here follows description of organization and officers –
ed.]. And such of us have, or can procure Riphel guns, &
understand the use of them, will be ready to form a Company of
Marksmen or Light-Infantry for the said Regiment, chusing our own
Officers as aforesaid, & distinguishing our Dress, when we are
upon Duty, from that of the other Companies, by painted
Hunting-Shirts and Indian Boots, or Caps, as shall be found most
convenient, - Which Regulation & Establishment is to be
preserved & continued, until a regular and proper Militia Law
for the Defence of the Country shall be enacted by the Legislature
of this Colony. And we do Each of us, for ourselves respectively,
promise and engage to keep a good Fire-lock in proper Order, &
to furnish Ourselves as soon as possible with, & always keep by
us, one Pound of Gunpowder, four Pounds of Lead, one Dozen
Gun-Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or
powder-horn, and Bag for Balls. That we will use our best Endeavours
to perfect ourselves in the Military Exercise & Discipline, &
therefore will pay due Obedience to our officers, & regularly
attend such private and general Musters as they shall appoint. And
that we will always hold ourselves in Readiness, in Case of
Necessity, Hostile-Invasion, or real Danger, to defend &
preserve to the utmost of our Power, our Religion, the Laws of our
Country, & the just Rights & Privileges of our
fellow-Subjects, our Posterity, & ourselves, upon the Principles
of the English Constitution." MASON PAPERS, Vol. I, pp.
215-216.

14
Hostilities began on April 19, 1775 in Massachusetts, and Virginia's
first state constitution was adopted June, 29, 1776, prior to the
Declaration of Independence.

16
See FOUNDERS’ VIEW, pp. 36-38, 53. The earliest Virginia
action involving an independent company was taken by the Hanover
Volunteers led by Patrick Henry. Henry understood that Americans
would "fly to Arms to defend themselves" to prevent from
being disarmed. With approval of the county committee, the
Volunteers marched to retrieve publicly owned gunpowder that had
been removed clandestinely from the colony's magazine and
transferred to a ship under the royal governor's military control.
The powder seizure occurred prior to knowledge of hostilities in
Massachusetts as did Henry's planning. However, the Hanover
Volunteer's march occurred shortly after it was known that war had
started in New England. Henry failed to obtain the seized powder,
but he was able to obtain payment from the colony's receiver-general
to replace it. See Robert Douthat Meade, Patrick
Henry:Practical Revolutionary,
1969, Lippincott, Philadelphia, pp. 44-53.

17
The heading of Virginia's 1776 Declaration of Rights stated: "A
declaration of rights made by the representatives of the good people
of Virginia, assembled in full and fee Convention; which rights do
pertain to them, and their posterity, as the basis and foundation of
government." ORIGIN,
p. 747.

18
An armed population was the clearly understood foundation of
Virginia's 1776 constitution as Edmund Randolph's later comment
regarding an argument presented by supporters of the Declaration of
Rights in Virginia's 1776 convention reveals: "that with arms
in our hands, asserting the general rights of man, we ought not to
be too nice and too much restricted in the delineation of them;"
from “Edmund Randolph's Essay on the Revolutionary History of
Virginia,” Virginia
Magazine of History and Biography,
Vol. XLIV, #1, Jan. 1936, p. 45.

21
As the Revolutionary Era approached after the French and Indian War,
Royal governors tended not to enforce such laws where still in
effect. See FOUNDERS’ VIEW, pp. 39-42 relative to the
situation in Massachusetts.

22
See FOUNDERS’ VIEW, pp. 15-25 for overview of defensive
associating in colonial Pennsylvania. During its entire colonial
history, there was only one Pennsylvania voluntary organized defense
law, which was in effect for less than a year in 1755-1756. Men
associating under the law were referred to as militia, but there
were major differences between Pennsylvania's law authorizing
entirely voluntary defensive associations and mandatory militia laws
of other colonies.

26
See Appendix I for a complete list of Revolutionary Era Mason
Triads. See FOUNDERS’ VIEW, pp. 63-74 for further discussion.

27
Only New Hampshire dropped the "free" reference before
“state”. See Appendix I, item 8.

28
David Kopel and Clayton Cramer provide this explanation of the three
parts of Pennsylvania’s 1776 Declaration of Rights Section
XIII (Mason Triad): “Article
XIII addresses the distribution of the power of force in a free
society. Clause one ensures that the government will not have a
monopoly of force, and further ensures that the lawful government
can be forcefully defended and protected by the people as a whole.
Clause two limits the government’s ability to create a
separate power of force. Clause three ensures that, to the limited
extent that government can have its own power of force, that power
will be controlled by the people, acting through their civil
representatives.” See their article, “The Keystone of
the Second Amendment: Quakers, The Pennsylvania Constitution, and
the Questionable Scholarship of Nathan Kozuskanich,” Widener
Law Journal, 2010,
available on the web at:
http://ssrn.com/abstract=1502925

29
Josiah Quincy, Memoir
of the Life of Josiah Quincy, Jun.,
1971, (reprint of 1826 Boston edition), DaCapo Press, New York, pp.
413, 397. See FOUNDERS’ VIEW, pp. 31-33 for discussion of
Quincy’s tract. A point that has caused confusion in modern
discussions has been the tendency to view well regulated militia
references in state bill of rights Mason Triads as part of the
subordinated military mentioned in the final triad part. This was
not the period understanding. The military consisted of armed forces
employed in the service of the government. Militia were always
understood as civilians except when employed in government service
during actual emergencies. Mason’s original triad makes clear
the well regulated militia reference was to “the body of the
people” rather than to a government employed force. Quincy’s
Observations
also make clear he was referring to the people in well regulated
militia references, not to a government employed force. His remarks
resulted from and were directed against government troops in Boston.
The body of the people, including all the able-bodied free men, were
not the military, they were the men composing the civil population.
The militia, including all the free able-bodied men, were often
equated with the people in America.

38
Not every Federalist Mantra was directly linked to concerns about
military powers. For example, see Zachariah Johnson's Virginia
Ratifying Convention mantra, which appears in the midst of a speech
denying the possibility of religious establishments, ORIGIN,
p. 452. Some Antifederalist Mantras were specifically made in
support of a particular military powers amendment. See George
Mason's double disarming argument calling for an amendment that "in
case the general government should neglect to arm and discipline the
militia, there should be an express declaration that the state
governments might arm and discipline them." ORIGIN,
pp. 401-402. The amendment later prepared for this purpose was
proposal #11 in Virginia's list of "other" amendments.
ORIGIN,
p. 460. This militia powers amendment had nothing to do with
existing bill of rights protections nor with Virginia's Second
Amendment predecessor, which was #17 in its “bill of rights”
list. The rights list consisted solely of protections taken
virtually verbatim from existing state bill of rights restrictions
on state governments. ORIGIN,
pp. 457-459. Confusion and conflation of militia powers arguments
and the Second Amendment predecessor of Virginia is evident in many
modern discussions about Second Amendment history and intent, even
those originating with professional historians. For such conflation
in the historians’ Heller brief, see David E. Young, “Root
Causes of Never-Ending Second Amendment Dispute, Part 18”:

47
See ORIGIN,
pp. 150-153 for all 15 proposals and the convention vote. The
militia powers amendment returned all militia powers back to the
state governments and had nothing to do with the Mason Triad based
Second Amendment predecessor, which was developed from a state
government limiting bill of rights provision.

48
For the Dissent,
see ORIGIN,
pp. 154-175. For its influence during the Ratification Era, see
DHRC, Vol. XV, pp. 9-13.

49
Adams, unhappy with a Federalist brokered deal that did not include
core bill of rights protections, proposed addition of his bill of
rights proposal to a Federalist prepared 10th
Amendment predecessor, which Adams viewed as the summary of a bill
of rights. The 9 Federalist proposed amendments, including 5th and
7th Amendment protections that were necessary to achieve
ratification were adopted. See ORIGIN,
p. 260. Also see FOUNDERS’ VIEW, pp. 113-119 for a more
detailed examination of Samuel Adams' failed bill of rights
proposals.

50
The Maryland Convention never voted on final disposition of
amendments that were discussed in a small committee after
ratification because no report was made by the committee, which had
agreed to 13 proposed amendments and rejected 15. Bill of rights
amendments were addressed in the committee, but none were Second
Amendment predecessors. See ORIGIN,
pp. 356-361 for details.

51
ORIGIN, p. 446. The
provisions were in reverse order from previous triads and were
separated by intervening Third and First Amendment related
protections.

55
ORIGIN, pp. 503-509. The
resolution refusing ratification stated: "Resolved,
That a declaration of rights, asserting and securing from
encroachment the great principles of civil and religious liberty,
and the unalienable rights of the people, together with amendments
to the most ambiguous and exceptionable parts of the said
Constitution of government, ought to be laid before Congress, and
the convention of the states that shall or may be called for the
purpose of amending the said Constitution, for their consideration,
previous to the ratification of the Constitution aforesaid on the
part of the state of North Carolina."

56
See FOUNDERS’ VIEW, pp. 132-134. Within the New York
Ratification document, the delegates declared "the rights
aforesaid cannot be abridged or violated, and that the explanations
aforesaid are consistent with the said Constitution". ORIGIN,
p. 483.

57
See items 4, 5, and 6 in Appendix II. New York added protection
against militia being subject to martial law other than during war,
rebellion, or insurrection between the two-clause Second Amendment
predecessor and the final two parts of its Mason Triad. This added
provision later became part of the 5th
Amendment.

61
Notably missing from Madison’s proposal was a militia powers
amendment, which was #11 in Virginia’s “other”
amendments list. Madison’s writings make clear that he had no
intention of altering Article I, Section 8 powers, which the militia
powers amendment would have done. See FOUNDERS’ VIEW, pp.
165-174 extensive information on Madison’s support for bill of
rights amendments and lack of support for major changes of the
Constitution.

63
See ORIGIN,
pp. 275-277 for Tench Coxe’s Federalist Mantra, one of the
most extensive and explicit written during the period. Coxe related
the discussion in this text to that in The
Federalist #45, a
copy of which he had received directly from its author, James
Madison. See also the list of Federalist Mantra’s in note
number 37, above.

64
Madison’s proposed location of insertion was “[t]hat in
Article 1st,
section 9, between clauses 3 and 4, be inserted these clauses”.
See ORIGIN,
p. 654.

67
“A well regulated militia, composed of the body of the people,
being the best security of a free state, the right of the people to
keep and bear arms shall not be infringed, . . ." ORIGIN,
p. 680.

68
“A well regulated militia being [necessary to] the security of
a free State, the right of the people to keep and bear arms, shall
not be infringed[.]” The Senate also removed a conscientious
objector clause Madison added to his original two-clause Second
Amendment predecessor that was retained throughout House
consideration. ORIGIN,
p. 712.

70
Standing army provisions are not found in a number of state bills of
rights formed after the early 1800’s. Such forces were
prohibited in time of peace by the U.S. Constitution.

71
Only NY has no civil control of the military provision. The seven
states adopting full Mason Triads since 1971 were Virginia, North
Carolina, New Hampshire, Nevada, West Virginia, Delaware, and Maine.
Mason Triad parts, which were closely linked in triads of the
Founding Era, appear in different order and in widely separated bill
of rights sections in many more modern state bills of rights.

72
Only New York, New Jersey, Minnesota, Iowa, and California have no
Second Amendment related protection. For an extensive 2006 listing
of provisions, see Eugene Volokh, “State Constitutional Rights
to Keep and Bear Arms,” Texas
Review of Law & Politics:

73
The sixteen states updating Second Amendment language included
Michigan, Illinois, Virginia, North Carolina, New Mexico, Louisiana,
Idaho, New Hampshire, Nevada, North Dakota, Utah, West Virginia,
Delaware, Nebraska, Florida, and Wisconsin.

74
The historians’ Heller brief fails to make any link between
the Second Amendment and its state bill of rights related
developmental history, which is documented above. For a greatly
condensed op-ed criticism of the brief’s many historical
errors and omissions, see David Young,“Why DC’s
Gun Law is Unconstitutional,” History
News Network:
http://hnn.us/articles/47238.html